Moore v. City of Tulsa

55 F.Supp.3d 1337

Jeremy MOORE, Plaintiff

v.City of TULSA, and Ray Driskell, individually and in his official capacity as Fire Chief of the Tulsa Fire Department, Defendants.

Case No. 14–CV–0152–CVE–FHM.

United States District Court, N.D. Oklahoma.

Signed Oct. 22, 2014.

Fred Everett Stoops, Sr., Joel A. LaCourse, Karman Jene Stoops, Stoops & LaCourse, PLLC, Tulsa, OK, for Plaintiff.

Brandon James Burris, Gerald M. Bender, Tulsa City Attorney, Tulsa, OK, for Defendants.

OPINION AND ORDER

CLAIRE V. EAGAN, District Judge.

Now before the Court are defendants' motion for judgment on the pleadings (Dkt. # 23), and motion for summary judgment (Dkt. # 24).¹ Defendants move to dismiss on the ground that the amended complaint fails to state a claim upon which relief can be granted as to plaintiff's claims for denial of due process, retaliation, and tortious interference. Dkt. # 23, at 15–31. They also argue that plaintiff's claims against Fire Chief Driskell in his official capacity should be dismissed as duplicative,² and that Fire Chief Driskell in his individual capacity is entitled to qualified immunity.³ Id. at 31–34. Plaintiff responds (Dkt. # 28) that defendants' motion for judgment on the pleadings should be treated as a motion for summary judgment and that disputed material facts make summary judgment inappropriate.⁴ Defendants filed a reply (Dkt. # 31).

I.

Plaintiff is a long-standing employee of the TFD, and his employment is governed by a contract with the City of Tulsa. Dkt. # 8, at 2, 8. Effective April 1, 2011, plaintiff was moved from his District Chief position to the higher-ranked Administrative Chief position. Id. at 2–3. His pay grade was increased, and he received benefits commensurate with the new position. Id. at 2. In early 2012, plaintiff applied for the position of Fire Chief of the City of Tulsa, as did defendant Ray Driskell and others. Id. Plaintiff and Driskell were among the final applicants considered, and Driskell was chosen to become the new Fire Chief. Id. at 2, 6. Plaintiff performed the duties of Administrative Chief from April 2011 to November 2012. Id. at 2.

On November 16, 2012, Fire Chief Driskell sent an e-mail to plaintiff and others that included, among other general departmental information, the news that plaintiff would be returned to his former position as District Chief. Id. at 7. Defendants did not state a cause for the change, nor did they provide plaintiff with notice or an opportunity to be heard. Id. at 4, 6. Plaintiff sought administrative remedies regarding the change, including an open trial before the City Council; no such remedy was granted. Id. As a result of the change in position, plaintiff's pay and benefits have decreased, his work schedule has changed significantly, and he has been forced to work additional overtime. Id. at 4–5. Because of the rules regarding TFD pensions, plaintiff must now either retire early or take a reduced pension. Id. at 5. Since the change, Fire Chief Driskell has denied plaintiff other opportunities to advance his career as a firefighter. Id. at 7. Prior to filing this case, plaintiff brought an action in state court, Dkt. # 23–3; he later dismissed all defendants without prejudice. Moore v. City of Tulsa et al., No. CJ–2013–03615, Dkt. # 88893606 (Dist.Ct. Tulsa Cnty. April 1, 2014).

The City of Tulsa is governed by the charter of the City of Tulsa (the City charter). Dkt. # 23–1, at 2; see also Okla. Stat. tit. 11, § 13–101. In Oklahoma, municipal law as created by charter supersedes conflicting state law on issues of municipal concern. Tit. 11, § 13–109; see also Lee v. Norick, 1968 OK 173, ¶ 15, 447 P.2d 1015, 1017–18 (“We have held that by both the Constitution and the statute such charter provisions, when not inconsistent with the Constitution, supersede the statutes pertaining to municipal affairs, and thereby becomes the superior law in matters pertaining to municipal affairs.” (citations omitted)). For purposes of their motions, defendants do not contest that the City charter governs. Dkt. # 23, at 14. The City charter contains the following relevant provisions:

• “The sworn members of the Fire Department ... shall hold their respective positions during good behavior ... unless removed for good and sufficient cause. No sworn member ... shall be ... demoted ... except for good and sufficient cause and then only upon written charges filed by the Mayor or the Chief of the Fire Department. A written statement of charges in clear and concise language shall be served upon the person charged, and such person shall be summarily demoted ... as requested in such charges, pending trial thereon.”

• “Any person against whom written charges are filed, requesting ... demotion ... may within ten (10) days from the date of service of the charges upon the person file with the City Clerk a demand for an open trial before the Council.... The Council shall, within ten (10) days after demand, give the person charged an open hearing upon the charges.”

• “All promotions shall be made by the Mayor upon the written recommendation of the Personnel Committee. All promotions shall be made solely on merit, efficiency, and fitness, which shall be ascertained by competitive examination and impartial investigation by the Personnel Committee.”

Dkt. # 23–1, at 4, 5. The term “position,” as defined in the TFD Administrative Operating Procedures, means “the function or office to which a member is assigned.” Dkt. # 8, at 4.

II.

“After the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings.” Fed.R.Civ.P. 12(c). Defendants have moved for judgment on the pleadings, but plaintiff argues that the Court should consider defendants' motion as a motion for summary judgment because defendants included matters outside the pleadings in their motion. Dkt. # 28, at 1. “If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.” Fed. R. Civ. P. 12(d) ; see also David v. City & Cnty. of Denver, 101 F.3d 1344, 1352 (10th Cir.1996). Defendants included the following with their Rule 12(c) motion: a copy of relevant provisions of the City charter, Dkt. # 23–1; a partial copy of the collective bargaining agreement between the City of Tulsa and the International Association of Firefighters Local No. 176, Dkt. # 23–2; a copy of the petition that plaintiff filed in state court on August 2, 2013, Dkt. # 23–3; and an affidavit of J. Scott Clark, Deputy Chief of Field Operations for the TFD. Dkt. # 23–4.

Defendants argue that the Court may take judicial notice of some of the documents without converting the motion to a motion for summary judgment. Dkt. # 23, at 11 n. 1. “[F]acts subject to judicial notice may be considered in a [Rule 12 ] motion without converting the motion to dismiss into a motion for summary judgment.” Tal v. Hogan, 453 F.3d 1244, 1264 n. 24 (10th Cir.2006). A court may take judicial notice of “matters that are verifiable with certainty.”St. Louis Baptist Temple, Inc. v. FDIC, 605 F.2d 1169, 1172 (10th Cir.1979). Such matters include public records. Id.; see also Tal, 453 F.3d at 1264 n. 24. The City charter is a public record, and the Tenth Circuit has taken judicial notice of similar charters. See Melton v. City of Okla. City, 879 F.2d 706, 724 (10th Cir.1989). The petition in plaintiff's state court proceeding is also a matter of public record of which the court can take judicial notice. See St. Louis Baptist Temple, Inc., 605 F.2d at 1172 (“[F]ederal courts, in appropriate circumstances, may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.”). The Court will take judicial notice of the City charter and the petition in the state court action, and doing so does not require the Court to convert plaintiff's motion pursuant to Rule 12(d). However, the Court can find no basis for taking judicial notice of a private contract or an affidavit. Thus, the Court refuses to take judicial notice of defendants' remaining exhibits.

Defendants also argue that the Court need not convert the motion, even if some material remains outside the pleadings, because the Court can exclude that material from its consideration. Dkt. # 23, at 2 n. 1. A court must convert a motion under Rule 12(c) if “matters outside the pleadings are presented to and not excluded by the court.” Fed.R.Civ.P. 12(d) (emphasis added). Therefore, the Court need not convert defendants' motion if the remaining matters outside the pleadings are excluded. See Alvarado v. KOB–TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir.2007). The Court will exclude from its consideration of the Rule 12(c) motion the collective bargaining agreement, Dkt. # 23–2, and the affidavit of J. Scott Clark, Dkt. # 23–4.

“A motion for judgment on the pleadings under Rule 12(c) is treated as a motion to dismiss under Rule 12(b)(6).” Atl. Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1160 (10th Cir.2000) ; accord Corder v. Lewis Palmer Sch. Dist. No. 38, 566 F.3d 1219, 1223–24 (10th Cir.2009). In considering a motion under Rule 12(b)(6), a court must determine whether the claimant has stated a claim upon which relief may be granted. A motion to dismiss is properly granted when a complaint provides no “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A complaint must contain enough “facts to state a claim to relief that is plausible on its face” and the factual allegations “must be enough to raise a right to relief above the speculative level.” Id. (citations omitted). “Once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint.” Id. at 562, ...